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F 8.32 n1 Second Degree Felony Murder: Research Notes.
See Annotation, What constitutes termination of felony for purpose of felony-murder rule, 58 ALR3d 851 and Later Case Service.
F 8.32 n2 Second Degree Felony Murder: Inherent Dangerousness.
Relying on People v. Patterson (89) 49 C3d 615 [262 CR 195], the CJ 8.32 use note states that the trial court should hold a factual hearing on the question of inherent dangerousness raises several unresolved issues.
In Patterson, the Supreme Court considered the question of whether furnishing cocaine in violation of HS 11352 is “inherently dangerous” and therefore a proper predicate for the second degree felony murder rule. The court held that an “inherently dangerous felony” is one which carries a “high probability that death will occur.” (Patterson 49 C3d at 627.) However, the court further held that the determination of inherent dangerousness should be made by the trial court. Such a determination by the trial court would raise serious constitutional concerns.
The resolution of this matter — which is essentially a determination of an element of the offense — by the trial court deprives the defendant of an opportunity to trial by jury on all factual issues underlying the charge. (See People v. Figueroa (86) 41 C3d 714, 723-34 [224 CR 719].) Hence this procedure may violate federal constitutional principles of due process and trial by jury. (5th, 6th & 14th Amendments.)
This procedure also raises a separation of powers problem. (California Constitution, Art. III, § 1.) By taking evidence upon matters such as the dangerousness of a given drug, the trial court is performing a classical legislative function. It is the role of the legislature to consider such evidence and in the light thereof define offenses and prescribe punishments. (See People v. Navarro (72) 7 C3d 248, 258 [102 CR 137].) To allow the trial court to perform such a function delegates a legislative function to the judiciary in violation of the California Constitution. (Ibid.; see also, People v. Tenorio (70) 3 C3d 89, 91-96 [89 CR 249].)
Moreover, because the process of determining the dangerousness of a given drug will be factual, the results may vary from case to case depending upon the evidence presented and its assessment by a particular trial judge. Thus, one person might be held liable for second degree murder for sale of cocaine and another might not. Such a result would implicate the due process and equal protection principles of the state (Art. I, §§ 7, 15) and federal (14th Amendment) constitutions.
“[P]ersonal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions.” (People v. Olivas (76) 17 C3d 236, 251 [131 CR 55].) Thus, the procedure suggested in Patterson must be subjected to “strict scrutiny.” (Olivas 17 C3d at 251.)
Under this analysis, the Patterson procedure is unconstitutional. The applicability of criminal sanctions under Patterson depends not upon the conduct of the defendant but upon the presentation of evidence regarding the definition of the crime on a case by case basis. Therefore, because the law must be applied equally to similarly situated persons who commit the very same acts, the Patterson procedure may result in the arbitrary imposition of criminal liability in violation of due process and equal protection principles.
Finally, there is no specification in Patterson as to what standard of review the trial court should use in resolving this issue. Certainly, the beyond a reasonable doubt standard should be required. (See People v. Tewksbury (76) 15 C3d 953, 963-64 [127 CR 135].)
RESEARCH NOTES: See Annotation, Homicide: Criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 32 ALR3d 589 and Later Case Service.
F 8.32 n3 Second Degree Felony Murder: Substantial Risk vs. High Probability.
“The distinction between the earlier formulation of a felony carrying a ‘substantial risk of death’ and the ‘high probability of death’ test set forth in Patterson seems somewhat fine … [but] [t]here may be cases which satisfy one formulation and not the other …” (People v. Ordonez (91) 226 CA3d 1207, 1225 [277 CR 382].)
F 8.32 n4 Second Degree Felony Murder: Retroactivity Of Patterson.
The retroactivity of Patterson is an “interesting question” which remains unresolved. (Ordonez at 1225, fn 6.)
F 8.32 n5 Inherent Dangerousness: Factual vs. Legal Question.
In People v. Taylor (92) 6 CA4th 1084, 1092-93 [8 CR2d 439], the majority concluded that the determination of inherent dangerousness is a question of law even though specific expert testimony may be presented. (See also People v. Schaefer (2004) 118 CA4th 893 [Apprendi only requires a jury trial on issues of fact].) However, the dissent concluded that the issue is a mixed question of law and fact. The significance of this issue is that a factual question as to an element of the offense should be resolved by the jury. (See FORECITE F 8.32 n2.) (See also People v. Hedgecock (90) 51 C3d 395, 407 [272 CR 803] [the distinction between question of law/question of fact “plays a relatively limited role in view of the defendant’s constitutional right to have a jury determine the existence of all elements of the offense charged. [Citation]”.)
People v. James (98) 62 CA4th 244, 259 [72 CR2d 342] held that whether a felony is inherently dangerous for purposes of the second degree felony murder rule is a question of law, or, at a minimum, a mixed question of law and fact which the court of appeal reviews de novo. Once a published appellate opinion holds a felony is [or is not] inherently dangerous, that precedent is controlling, unless and until a litigant makes an offer of proof that technological changes have changed the status of the felony. This insures that the classification of felonies as inherently dangerous is governed by uniform rule of law. (Id., 62 CA4th 244 at 263; but see FORECITE F 8.32 n2 [such policy evaluations should be performed by the legislature rather than by litigation].)
F 8.32 n6 Second Degree Felony Murder: Duty To Instruct On Termination Of Underlying Felony.
Felony murder does not apply unless the underlying felony and the killing are part of “a continuous transaction.” (People v. Thompson (90) 50 C3d 134, 171 [266 CR 309].) While a robbery remains in progress for purposes of the felony murder rule until the perpetrator has reached a place of temporary safety (see FORECITE F 8.21.1 et al.), for other crimes such as kidnapping and sex crimes the felony is complete when the victim is no longer detained. (See FORECITE F 8.81.17b.) Therefore, when the evidence may be interpreted to conclude that the underlying felony had ended before the killing occurred, the trial court is under a sua sponte obligation to instruct the jury as to when the underlying felony ends and that murder may not be predicated upon the killing which occurs after the felony has ended. (See People v. Pearch (91) 229 CA3d 1282, 1299 [280 CR 584].)
RESEARCH NOTES: See Annotation, What felonies are inherently or foreseeably dangerous to human life for purposes of felony-murder doctrine, 50 ALR3d 397 and Later Case Service.
F 8.32 n7 Second Degree Felony Murder: Merger Doctrine—Collateral Purpose Rationale.
ALERT: People v. Farley (2009) 46 C4th 1053, 1118-20 overruled People v. Wilson (1969) 1 C3d 431 which precluded the application of the felony murder rule to assaultive burglaries. However, Wilson still applies to crimes committed prior to the finality of the Farley decision.
As with first degree felony murder (see FORECITE F 8.21f), the merger doctrine (People v. Ireland (69) 70 C2d 522, 539) precludes conviction for second degree felony murder based on a felony—such as assault—which is an integral part of the homicide. (See Use Note to CJ 8.32; People v. Flores (92) 7 CA4th 1350, 1360; see also People v. Stewart (2000) 77 CA4th 785 [second degree felony murder is not a lesser-included offense of PC 273ab; giving of instruction would violate Ireland].)
The applicability of the Ireland (People v. Ireland (69) 70 C2d 522, 539 [75 CR 188]) merger doctrine to second degree murder depends on whether “the purpose of the predicate felony was independent of or collateral to an intent to cause injury that would result in death.” (People v. Robertson (2004) 34 C4th 156, 171; compare People v. Wright (2005) 35 C4th 964 [merger doctrine applied; Robertson distinguished].) This “collateral purpose rationale” provides the most appropriate framework to determine the propriety of instruction on felony murder. (Ibid.; see also People v. Randle (2005) 35 C4th 987, 1005)
Second Degree Felony Murder: Merger Doctrine Not Triggered By Unlawful Discharge Of A Firearm (PC 246.3). See People v. Robertson (2004) 34 C4th 156.
F 8.32 n8 May Intoxication Negate Implied Malice? (PC 188)
[See FORECITE F 8.47b.]
F 8.32 n9 Second Degree Felony Murder: Specific Offenses.
A. Felonies that have been held inherently dangerous to life include:
1. Shooting at inhabited dwelling (PC 246). (People v. Hansen (94) 9 C4th 300, 309-11 [shooting at an inhabited dwelling in violation of PC 246 is an inherently dangerous felony; the Ireland “merger” doctrine does not apply to PC 246]; People v. Howard (2005) 34 C4th 1129, 1136.) (See FORECITE F 9.03 n6.)
2. Poisoning food, drink or medicine with intent to injure. (People v. Mattison (71) 4 C3d 177; see also People v. Howard (2005) 34 C4th 1129, 1136.)
3. Willful and malicious burning of automobile. (People v. Nichols (70) 3 C3d 150, 163; People v. Howard (2005) 34 C4th 1129, 1136; but see People v. Henderson (77) 19 C3d 86, 96.)
4. Grossly negligent discharge of a firearm that could result in injury or death (PC 246.3). (People v. Clem (2000) 78 CA4th 346, 353-354; see also People v. Robertson (2004) 34 Cal.4th 156, 168-169 [quoting Clem with approval]; People v. Howard (2005) 34 C4th 1129, 1136.)
5. Manufacture of methamphetamine (HS 11379.6(a)). (People v. James (98) 62 CA4th 244, 271 [manufacturing methamphetamine is an inherently dangerous felony for purposes of the second degree felony murder rule]; People v. Howard (2005) 34 C4th 1129, 1136.)
6. Kidnapping. (People v. Greenberger (97) 58 CA4th 298, 377; People v. Pearch (91) 229 CA3d 1282, 1299; People v. Howard (2005) 34 C4th 1129, 1136.)
7. Kidnapping for robbery. (People v. Coleman (92) 5 CA4th 646, 649-51 [commission of kidnapping for robbery creates a high probability of death and, therefore, is an inherently dangerous felony].)
8. Reckless or malicious possession of a destructive device. (People v. Morse (92) 2 CA4th 620, 646; People v. Howard (2005) 34 C4th 1129, 1136.)
9. Shooting at occupied vehicle (PC 246). (People v. Tabios (98) 67 CA4th 1, 9 [held that, by analogy to cases involving shooting at an inhabited dwelling, shooting at an occupied vehicle is an inherently dangerous felony for purposes of the second degree felony murder rule].)
B. Felonies that have been held not inherently dangerous to life include:
1. Practicing medicine without a license under conditions creating a risk of great bodily harm, serious physical or mental illness, or death. (People v. Burroughs (84) 35 C3d 824, 833; People v. Howard (2005) 34 C4th 1129, 1136.)
2. False imprisonment by violence, menace, fraud, or deceit. (People v. Henderson (77) 19 C3d 86, 92-96; People v. Howard (2005) 34 C4th 1129, 1136.)
3. Possession of concealable firearm by ex-felon. (People v. Satchell (71) 6 C3d 28, 35-41; People v. Howard (2005) 34 C4th 1129, 1136.)
4. Possession of a sawed-off shotgun. (People v. Satchell (71) 6 C3d 28, 41-43; People v. Howard (2005) 34 C4th 1129, 1136.)
5. Escape from city or county penal facility. (People v. Lopez (71) 6 C3d 45, 51-52; People v. Howard (2005) 34 C4th 1129, 1136.)
6. Grand theft. (People v. Phillips (66) 64 C2d 574, 580-583; People v. Howard (2005) 34 C4th 1129, 1136.)
7. Conspiracy to possess methedrine. (People v. Williams (65) 63 C2d 452, 458; People v. Howard (2005) 34 C4th 1129, 1136.)
8. Extortion. (People v. Smith (98) 62 CA4th 1233, 1236-1238 [extortion is not an inherently dangerous crime under the felony murder rule]; People v. Howard (2005) 34 C4th 1129, 1136.)
9. Furnishing phencyclidine (PCP). (People v. Taylor (92) 6 CA4th 1084, 1099; People v. Howard (2005) 34 C4th 1129, 1136.)
10. Felony child endangerment or abuse. (People v. Lee (91) 234 CA3d 1214, 1229; People v. Howard (2005) 34 C4th 1129, 1136.)
11. Commercial burglary. (People v. Weddle (91) 1 CA4th 1190, 1198-1200 [commercial burglary, while creating some risk of death, does not create a high risk of death sufficient to predicate second degree felony murder under the “high probability of death” standard].)
12. Flight From Officer (VC 2800.2). (People v. Howard (2005) 34 C4th 1129.)
13. Evading Peace Officer (VC 2800.3). Evading a police officer resulting in GBI is a felony. However, the predicate crime for felony murder (PC 189) purposes is evading a police officer (VC 2800.1), a misdemeanor. Hence, because felony murder may not be predicated on an intent to commit a misdemeanor, felony murder based on VC 2800.3 is improper. (People v. Jones (2000) 82 CA4th 663, 669-70 [98 CR2d 724]; see also People v. Sanchez (2001) 86 CA4th 970 [103 CR2d 809] [reaching same result because felony evasion of police pursuit not an inherently dangerous crime that may serve as basis for felony murder conviction].)
RESEARCH NOTES: See Annotation, Homicide: Criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 32 ALR3d 589 and Later Case Service.
F 8.32 n10 Second Degree Felony Murder: Definition Of Administer.
The term “administer” is defined in CJ 12.07. (See also FORECITE F 12.07a.)
F 8.32 n11 Conspiracy: Specification Of Elements And Intent — Conspiracy To Commit Murder Requires Intent to Kill.
[See FORECITE F 6.10 n11.]
F 8.32 n12 Second-Degree Felony Murder: Retroactive Judicial Determination Of Applicable Felony Violates Due Process.
Second-degree felony murder differs from first-degree felony murder in that the felonies upon which first-degree murder may be predicated are defined by statute (PC 189). The predicate felonies for second-degree felony murder are judicially determined. (See People v. Patterson (89) 49 C3d 615 [262 CR 1195]; see also CJ 8.32, Use Note.) However, when a new felony is judicially added to the list of predicate felonies for second-degree murder, there may be a due process problem in applying that interpretation to the current defendant whose acts necessarily were committed before the judicial determination. “It is settled that a state supreme court, no less than a state legislature, is barred from making conduct criminal which was innocent when it occurred, through the process of judicial interpretation.” (People v. Escobar (92) 3 C4th 740, 751 [12 CR2d 586].) Ex post facto principles apply to judicial action by virtue of the due process clause of the federal constitution (5th and 14th Amendments; see Marks v. U.S. (77) 430 US 188, 191-92 [51 LEd2d 260; 97 SCt 990]; Bouie v. Columbia (64) 378 US 347, 354 [12 LEd2d 894; 84 SCt 1697]; People v. King (93) 5 C4th 59, 79-80 [19 CR2d 233]; see also PG VII(C)(27).)
F 8.32 n13 THIS ENTRY HAS BEEN DELETED.
F 8.32 n14 THIS ENTRY HAS BEEN DELETED.
F 8.32a
Modification When Crime Involves Fetal Victim
*Modify CJ 8.32 in paragraphs which include “human being(s)” as follows:
(See FORECITE F 5.00b.)
F 8.32b
Felony Murder: Applicability Of Duress/Coercion
To Underlying Felony
* Add to CJ 8.32:
SAMPLE INSTRUCTION # 1:
If you have a reasonable doubt whether the defendant is guilty of _____________ (the named inherently dangerous felony) after considering all the evidence including any threats and menaces as defined in these instructions, [you must acquit the defendant of that felony and] you cannot convict the defendant of murder [.] [based on the allegation that [he] [she] participated in the commission of a __________ (the named inherently dangerous felony).
SAMPLE INSTRUCTION # 2:
It is a defense theory that the defendant is not guilty of the alleged ___________ (the named inherently dangerous felony) because [he] [she] was acting under threats and menaces as defined elsewhere in these instructions.
If, after considering the evidence of threats and menaces, together with all the other evidence, you have a reasonable doubt that the defendant is guilty of the alleged _______________ (the named inherently dangerous felony) you must give the defendant the benefit of that doubt and find [him] [her] not guilty of [murder.] [murder based on the commission of an inherently dangerous felony.]
[Based on CALJIC format in CJ 2.91; see also CJ 4.30 and CJ 4.50.]
SAMPLE INSTRUCTION # 3:
It is a defense theory that the defendant is not guilty of the alleged __________ (predicate inherently dangerous felony) because [he] [she] was acting under threats and menaces as defined elsewhere in these instructions.
If, after considering the evidence of threats and menaces, together with all the other evidence, any juror has a reasonable doubt that the defendant is guilty of the alleged __________ (predicate inherently dangerous felony), that juror [must] [is duty-bound] to vote not guilty of [murder.] [murder based on the commission of an inherently dangerous felony.]
Points and Authorities
See FORECITE F 8.21j.